Volume 66 — Texas Reports

Tried below before the Hon. J. B. McFarland. The following sketch gives an approximately accurate idea of the lot and improvements in controversy: This was an action of trespass to try title, and for damages, brought by the appellant, Charles E. Wynne, as assignee under statutory assignment, against appellee, Thos. F. Hudson, his assignor, and Hudson’s wife, and a number of tenants. The defendants all pleaded, iointly: 1.

Tried below before the Hon. J. R. Kennard. This case was before the supreme court at a former term, and is reported in 56 Tex., 182. The facts were about as follows: On March 12, 1873, Anna Perry, now Mrs. Walker, one of the appellants, brought suit in the district court of Houston county, against all the appellees, except Mrs. Thompson and Mrs. Jeffus, whose husbands, however, were sued, for an undivided half of the Jose, A. Aughinbaugh league of land, in that county.

<p>1. Spanish grant—Construction of language—Our courts are not presumed to be acquainted with the peculiar forms of expression of the Spanish language. These are matters of proof; and, without evidence upon the subject, the language of a Spanish grant translated into English cannot be treated otherwise than as if the original grant had been in English.</p> <p>2. Patent ambiguities—Courts do not solve patent ambiguities, but treat the ambiguous provisions as inoperative and void. (1 Greenl. on Ev., sec. 300 ; 2 Whar. on Ev., sec. 956.)</p> <p>3. Latent ambiguity—Construction—Latent ambiguties are developed by extraneous evidence; such evidence must, therefore, solve them, and through it the jury must arrive at their conclusion. (1 Greenl. on Ev., sec. 292.)</p> <p>4. Same—Declaration of parties—Evidence—When the language used in a deed to describe the premises conveyed, is equivocal, ambiguous, or insufficient, subsequent acts or declarations of the parties, showing the practical construction put upon the words of the description by them, may be resorted to. (Stone w. Clark, 35 Am. Dec.', 373.)</p> <p>5. Same—Such evidence is not introduced to show the real meaning of the words, but the construction put upon them in the particular case by the parties, and is to be considered by the jury, and not the court.</p> <p>6. Evidence—Charge—It is error to exclude from the jury the decision of a conflict in the evidence.</p> <p>7. Same—See opinion for facts under which it could not be held that an erroneous charge did not influence the verdict of the jury.</p> <p>8. Estoppel—A defendant cannot be estopped by recitals in deeds when the action is not founded upon those deeds, 'and he does not defend under them. (Big. on Estop., 269.)</p> <p>9. Same—Requisites—An important requisite of estoppel is that it should be certain, precise and clear; and nothing should be left to doubtful inference. See opinion-for facts under which a deed did not estop parties claiming under it.</p> <p>10. Same—Judgment—See opinion for a judgment which did not operate as an estoppel.</p> <p>11. Survey—Natural objects—Course and distance—While natural objects control course and distance, as a general rule, yet neither of these should absolutely control the other when that other most truly indicates the proper locality of the tract. (Following Jones v. Burgett, 46 Tex., 284.)</p> <p>12. Boundaries—Old surveys—Evidence—In determining the boundaries of lands surveyed long ago, the signs of which have been destroyed, and the location of which is not within the knowledge of living men, many facts tending to solve the question as to their true location are permitted to go to the jury, which would be excluded in other cases.</p>

Tried below before the Hon. W. H. Burkhart. This suit was instituted November 8, 1882, in the district court of Brazoria county, by E. E. Smith against B. S. Willis, for the recovery of a league of land situated in that county, known as the David Tally league, and for $17,000 damages for use and occupancy, etc. The amended original petition, filed November 6, 1883, alleged that plaintiff was, on the first Tuesday in August, 1881, and continued to be, the owner, and entitled…

Tried below before the Hon. Eugene Williams. This was a suit in the nature of a quo warranto proceeding brought in the name of the state on the relation of R. H. Kingsbury, Jr., against J. F. Brinkerhoff, to inquire and determine by what authority Brinkerhoff held the office of recorder of the city of Waco.

On rule against the Hon. Jno. O. Bussell, judge of the district court of Cameron county, to show cause why a peremptory mandamus should not issue, requiring him to proceed with the trial of the above cause.

Error from Grayson. Tried below before the Hon. Richard Maltbie. The plaintiff in error and Lourana Cartwright were husband and wife.

<p>1. Mechanic’s lien—Description of premises—Affidavit—See opinion for description of the premises, in a petition to foreclose a mechanic’s lien, held uncertain and contradictory when taken in connection with the description of the registered affidavit.</p>

Tried below before the Hon. T. J. Beall, Special Judge. This was a suit by Wm. Eichoff, plaintiff helow and appellee here, against appellants as sureties on a bond for $300, in which Conrades and Logeman, L. W. Siler, J. A. Vonbrock, and F. Meyer. & Co.,were principals. The bond, which was payable to Eichoff had been executed in pursuance of an order of the district court of Tarrant county in the cause of Wm. Eichoff ®.

Tried below before the Hon. D. H. Scott. This was an action of trespass to try title, filed by appellants on October 27,1884. Defendants answered by disclaimer as to a portion of the land, plea of not guilty, etc. The cause was tried by the court on March 21, 1885, and judgment rendered in favor of defendants. Appellants claimed the land as the heirs of E. A. and Melinda J. Blanton.

<p>1. General warranty—Adverse claimants—A vendor of land, who gives a general warranty of title, when made a party defendant in a suit against his vendee, must defend that title. Defenses, of limitation available to the vendee, or of the sufficiency of any part of the title which he warrants, must be urged by him.</p> <p>2. Same—Fact case—In a suit for land by A. against H., B., his vendor, who had given a general warranty of title, was made a party defendant. By an agreement between A. and H., a judgment was rendered whereby the land was divided between them. In a subsequent suit by H. to recover of A. upon his warranty, Held The judgment rendered upon agreement between A. and H. was conclusive of their respective rights to the divided land, and of a breach of the general warranty of B.</p> <p>3. Practice—Former judgment—So long as a judgment is not set aside, by direct proceeding for that purpose, it is not error to refuse instructions to the jury which would authorize them to again pass upon questions already conclusively settled by that júdgment.</p> <p>4. Eviction—Warranty of title—Measure of damage—In case of breach of general warranty, the warrantee is entitled to recover of the warrantor the purchase money; and interest upon the purchase money will be-allowed as part of his damages in order to counterbalance the claim for mesne profits which the owner of the paramount title may recover of the warrantee.</p> <p>5. Same—Interest—When the premises were occupied by the warrantee, and he has not accounted, nor is accountable, for rents and profits, he is entitled to recover interest upon the purchase money only for the time succeeding eviction. But if, under the statutes of limitation, the holder of the paramount title recovers mesne profits for a certain period, the warrantee will be entitled to recover of the warrantor interest for the same period ; and, also, for the time succeeding actual eviction.</p>

Tried below before the Hon. T. L. Hugent. This was an action for damages. The petition alleged that certain property of appellant had been unlawfully taken and converted by W. T. Hudson, Hick Hudson and Bob Farrell and sought the value of the property as damages. The answer of defendants contained a plea setting up facts which they claimed constituted a purchase by them of the property. In his supplemental petition the plaintiff excepted to that plea.

Tried below before the Hon. B. W. Bimes. This was an action of trespass to try title brought by the appellant to recover two hundred and fifteen acres described in his petition- as follows: “A part of the Gregoria Basques seven league grant, beginning at the southwest corner of a tract of one hundred acres of land, sold to W. P. Barron ; thence north sixty-two east fifteen hundred and ninety-four varas to stake in prairie ; thence south twenty-eight east seven hundred and…

Tried below before the Hon. F. E. Finer. This was an action upon two promissory notes. The appellee, Johnson, through his agent, A. M. Jones, conducted a grocery store. He agreed to sell the stock of goods to Charles Durie, provided the title should not pass, and that the goods should remain in possession and under control of his agent, Jones, until he should be fully paid; and, on January 16, 1884, Johnson executed a bill of sale of the goods to that effect.

Tried below before the Hon. D. H. Scott. On December 21, 1871, appellee, Elizabeth Muller, and husband, William Miller, brought this suit against William O. Whitsett, E. H. Smith and J. L. Smith, in the district court of Fannin county, alleging that in February, 1865, William Miller purchased from one James M. Collins a tract of about six hundred acrcres land out of the William Wammock survey, lying in Fannin county; that the contract of purchase was verbal; that Miller…

Tried below before the Hon. Geo. McCormick. B. C. Houston instituted this suit against I. J. Dickson and James McAllister on the following note executed by Dickson to A. L. Yelvington : “On or before the first day of January, A. D. 1884, I promise to pay A. L. Yelvington, or order, for value received, the sum of sixty dollars, with interest at the rate of ten per cent, per annum. Lavernia, December 18, 1882.

Tried below before the Hon. B. F. Williams. This was an action for the recovery of personal property. The petition of appellant, filed in the county court of Clay county, alleged title and right of possession to an omnibus and harness, valued at $475, and sought to recover the same from D. J. TTttley. The county judge being disqualified, the case was transferred to the district court.

Tried below before the Hon. B. W. Rimes. On May 9, 1882, I. A. McLure was doing a mercantile business in the little hamlet of Rogers, in Bell county, and sold out his store house and lot and dwelling house to H. E. Simpson for $3,000, Simpson paying him $800 in cash and executing his three promissory notes in the sum of $733,333-, payable in six, twelve and eighteen months from date, at ten per cent, interest, to W. F. McLure or bearer.

<p>Error from Cooke. Tried below before the Hon. F. E. Finer.</p> <p>On December 19, 1885, J. R. Stevens filed in the district court of Cooke county, against W. B. Worsham, a petition upon a promissory note, upon the face of which there appeared to be due inclusive of attorney’s fees, $5,827.69. The note was signed W. B. Worsham, was dated April 18, 1884, and payable April 18, 1885, to the order of J. R. Stevens, and was in the usual form, with the exception of the following provision: “In ease of the non-payment of the above note at maturity, I hereby authorize any licensed attorney-at-law to appear for me in court, waive process and confess judgment in favor of the legal holder of the note against me for the full amount of the note and interest, with ten per cent, attorney’s fees additional.”</p> <p>No citation was issued, but upon the day the petition was filed, E. A. Blanton, a licensed attorney, claiming to act by virtue of the power contained in the note, entered an appearance for the defendant, and confessed judgment for the full amount claimed, and judgment by confession was accordingly rendered.</p>

Tried below before the Hon. R. Maltbie. Appellee filed suit against appellant in the district court of Grayson county to recover $10,000 actual and $15,000 vindictive damages for personal injuries alleged to have been received by him in a wreck of a passenger train on defendant’s railroad on January 25, 1884.

Tried below before the Hon. B. F. Williams. Suit was brought July 21, 1884, by appellants to recover $3,675, with interest, alleged to be due upon a written contract, and to foreclose a lien on block twenty-three, in the town of Henrietta, and the residence thereon. The petition alleged that the debt was for lumber and material furnished by appellants, and used by appellees in the construction of their residence.

Error from Dallas Tried below before the Hon. Geo. A. Aldridge. E. M. Tillman brought suit against J. Simons & Co. for $13,000, and on September 24, 1884, applied for writs of garnishment against A. Cohn and others, stating that the residence of A. Cohn was in Ellis county, Texas. The writ against A. Cohn was directed to the sheriff of Ellis county, and served on October 6,1884.

Error from Montague. Tried below before the Hon. F. E. Finer. November 1, 1882, William Jones instituted suit in the district court of Montague county, for the recovery of the amount due upon two notes given by J. E. Secrest, each being for $150; and to foreclose a vendor’s lien on one hundred acres of land out of the S. A. Mills survey, in Montague county.

Tried below before the Hon. Geo. F. Aldridge. This suit was instituted in the district court of Dallas county on August 5, 1884, on a policy of insurance issued by appellant to appellee.

Tried below before the Hon. B. E. Beck-ham. On October 22, 1885, G. W. Gillespie brought suit against W. E. Remington on a debt for lumber and material furnished by plaintiff to defendant for the purpose of building a house for defendant, and to enforce the statutory lien againt the house and lot upon which it was situated.

Tried below before the Hon. P. E. Finer. This was a suit to foreclose a vendor’s lien on certain land in the possession of defendant, and the case turned upon the sufficiency of defendant’s answer. The petition alleged sale of the land by plaintiffs to defendant; that they conveyed it to him by deed, and that he executed the notes sued on in consideration thereof. It also admitted payment of $210 on the notes.

Tried below before the Hon. G. H. Noonan. This was an action by appellees for damages resulting from a breach of contract by appellant.

Tried below before the Hon. D. H. Scott. This was an action to recover $12.000 damages for personal, injuries.. The answer contained a general denial and plea charging plaintiff with contributory negligence. The trial resulted in a verdict and judgment for plaintiff, fixing his damage at $2,500. The accident occurred at Savoy, a station on defendant’s road. Plaintiff was expecting a friend, with whom he had business, to arrive by defendant’s train.

Tried below before the Hon. R. R. Gaines. This was a suit instituted by the city of Paris, a municipal corporation, against T. Broad, E. Reuss, Joe Ballinger, T. H. Freese and P. H. Allen.

Tried below before the Hon. F. E. Finer. This was an action of trespass to try title brought by the appellant. The lot in controversy was sold in May, 1884, under an execution issued upon a judgment rendered March 22, 1882, against J. B. Duncan, in favor of O. M. Batis, and was purchased by M. Fulton, who received a deed from the sheriff.

Tried below before the Hon, F E. Finer. The land in question was fifty acres of a survey containing about a third of a league. On November 22, 1884, P. Pfeiffer & Co. sued Mc-Natt & March (a firm composed of L. C. McNatt and J. B. March), and on the same day levied an attachment upon “fifty acres of the J. M. Moss survey.” In March, 1885, a joint and several judgment was obtained against McNatt & March. The attached property was sold by the sheriff and bought by appellants.

<p>1. Identification—Sheriff’s deed—Description—The facts appearing that a valid execution was levied on a tract of land claimed under a sheriff’s deed, and that this tract was sold by the sheriff and the purchase money paid, it is immateial that the deed made to the purchaser by the sheriff does not sufficiently describe the land.</p> <p>2. Presumption—Lapse of time—Effect—Every permissible presumption should be indulged in support of a claim oL forty years’ duration, and which, during that length of time, was undisputed by those adversely interested.</p> <p>3. Proof—See the opinion for facts held sufficient to support a finding that a certain tract of land was levied on and sold by the sheriff, although the execution alleged to have been levied, and the execution docket in use at the time, were both lost.</p>

<p>1. Practice—Assignment of error—An assignment of error, questioning the sufficiency of a verdict because it contained no finding upon a given issue, supported by no fuller statement than that “ evidence was introduced thereon,” does not conform to the rules.</p> <p>2. Same—Verdict—The charge to the jury required them, in case they should find improvements to have been made, to find the value thereof. Their verdict contained no finding upon that issue. Held., The judgment upon such verdict will not be set aside unless it appear that the preponderance of evidence showed that improvements had been made. The charge as to the value of improvements was contingent, and the silence of the jury upon that issue determined the doubt as to the existence of improvements.</p>

Tried below before the Hon. F. E. Finer. This suit was a trial of the right to a stock of goods levied upon as the property of A. J. Milburn, of Denver, Montague county, Texas, the attachment being issued at the suit of the Martin-Brown Go., of Ft. Worth, plaintiff below. Appellees, Wainscott & Purviance, claimed the goods as purchasers in good faith and without notice of Milburn’s insolvency.

Tried below before the Hon. A. J. Hood. Appellee brought this suit June 17, 1882, alleging substantially that plaintiff’s child, Charles Morin, then only about thirty months old, casually, and without the fault of plaintiff or his wife, strayed in and upon the defendant’s railroad and grounds occupied by it in Tarrant county, near the plaintiff’s residence.

Tried below before the Hon. F. E. Finer. J. C. Carpenter, who was the plaintiff below, brought this suit in the county court of Wise county, against T. E. Allen, sheriff of that county, and Gus. Lewy & Co., a firm composed of Gus. Lewy and M. Lasker, for the value of a stock of saloon goods, levied on by a writ of attachment in favor of Gus.

Tried below before the Hon. Geo. N. Aldridge This was an action of trespass to try title, brought by appellants to recover an undivided interest in certain real estate situated in the city of Dallas. All parties claimed through Charles G. Newton. The first wife of Charles G. Newton died in 1852, leaving four children, Chas.

Tried below before the Hon. M. D. Priest, special judge. This was an action to recover damages for personal injuries, the damages being placed at $20,000. The suit was originally brought against the-G-ulf, Colorado and Santa Fe Bailway Company, but by an amended petition the Galveston, Harrisburg and San Antonio Bailway Company was made a co-defendant.

Tried below before the Hon. D. H. Scott. This suit was filed by appellant, as administrator of E. W. Watson, to recover damages for the conversion by defendant of ten thousand pounds of seed cotton. The petition asked $300.00. Before the trial, jurisdiction of cases involving amounts under $500.00 was vested in the county court. The case was tried by the district court and resulted in a judgment for plaintiff for $127.60.

<p>Appeal—Parties—Practice—When relief is sought against several defendants, of such a character that it can not be given without affecting all alike, and judgment is rendered in their favor, the supreme court will not revise it until</p>

<p>1. Garnishment—Overdue note—Assignment—It is well settled that the maker of an overdue note can be garnished for a debt due the owner. The note could not be assigned free from such defences as the maker could set up against the assignor ; the garnishment proceedings would be a good defence, and the maker would bo fully protected when compelled to pay the amount of the note to the plaintiff in garnishment.</p> <p>2. Same—Date of judgment—The weight of authority is that if the note is due and owned by the payee at the time judgment in garnishment is rendered, the maker is liable to such judgment, though at the time he was served the note had not matured. (Drake on Attch., secs. 587, 588 ; Bassett v. Garthwaite, 22 Tex., 230.)</p> <p>3. Same—Burden of proof—The burden of proof is on the plaintiff to show that the payee has not transferred the note before maturity; otherwise the garnishee must be discharged.</p> <p>4. Same—Settlement of note by maker—Liability—If the maker, after being cited in the garnishment proceedings, and while the note is still owned by the payee, and overdue, settles it with the payee, there is no reason why he should be protected against a judgment in the garnishment proceedings.</p>

Tried below before the Hon. James Masterson. About March, 1857, the Houston & Texas Central Railway Company, desiring to extend its road, contracted with parties to do the work, and agreed to pay them in ‘‘stock notes.” The “stock notes” contemplated in the agreement were notes given by subscribers to stock in the company, and were in the usual form of promissory notes.

<p>1. Usury—Affidavit—Four of five co-defendants answered by a plea of usury, which was sworn to only by the defendant who did not plead it. Held: An exception to the plea was properly sustained. (R. S., art. 2981.)</p> <p>2. Same—Agency—There is no presumption of law that one of several co-defendants is agent for the others to make a defense in which he does not join. When an affidavit is made in the course of a judicial proceeding by one person in behalf of another, his authority should be made to appear from the record, or it will not serve for the oath of the proper party.</p>

Tried below before the Hon. Frank Willis. This was an action for the trial of the right of property. On May 16, 1884, the appellant instituted suit for the recovery of $685.95 due him by James M. Sands, at the same time procuring a writ of attachment which, May 19, 1884, was levied upon an undivided half interest in certain personal property, the other half being owned by the Dickerson Bros., and upon certain other personal property, all in the possession of Sands.

Tried below before the Hon. F. E. Finer. This was an action of trespass to try title, the appellants being plaintiffs.

Error from Hays. Tried below before the Hon. H. Teichmueller. The defendant in error, Duff Moss, by his next friend A E. Habicht, on July 12, 1884, instituted suit in the district court of Hays county against G-. O. Reed and Laura M. Reed, his wife; M. O’Brien and the plaintiff in error, Joseph Keener, for partition, under the statute, of a certain lot with improvements thereon, in the city of Fort Worth, in Tarrant county,-Texas.

Tried below before the Hon. L. D. Bradley. This was an action of trespass to try title. The opinion renders it unnecessary to state the facts. The case was submitted to the court and a judgment rendered for the defendant, G. A. Ogilvie.

Tried below before the Hon. Geo. H. Uoonan. Appellees, Yancy & Foster, instituted this action in the district court of Bexar county, October 30, 1884, against Crosby So Co., to recover the sum of $1,075.06, and caused writs of garnishment to be issued and served upon appellant. Appellant filed an amended original answer as garnishee, December 31, 1884, admitting an indebtedness to Crosby & Co. of $409.60.

Tried below before the Hon. Geo. H. Hoonan. This was an action of trespass to try title. It was before this court at a former term and was reported in 43 Tex., 340. On February 15, 1855, J. FT.

Error from Travis. Tried below before the Hon. Fred. Carleton, special judge. This was an action upon a warranty of title. The first amended original petition alleged defendant, Crawford, to be a resident of Nebraska, and sought to recover the value of certain cattle bought of him by plaintiff, which proved to have been stolen by Crawford’s vendors.

<p>1. Administrator— Qualifications—Contract to make bond—Enforcement—A party desiring to be appointed administrator de bonis non, was unable to give the requisite bond. He contracted with a firm of lawyers to pay them a certain sum if they would secure his appointment and obtain for him sufficient bond. The heirs, having a superior right to the administration, had agreed to relinquish it in his favor. Held:</p> <p>(1) Good character is an express addition to the applicant’s qualifications. (R. S., art. 1861.) The test of this qualification is his ability to procure the requisite bond.</p> <p>(2) The inability of the applicant to procure the surety rendered him incompetent, and the agreement, the tendency of which was to impose upon the trust a deficient incumbent, cannot be enforced. (Porter v. Jones, 52 Mo., 399.)</p> <p>(3) If the tende'ncy of the contract was vicious, the innocent intention of the parties could not save it. (Marshall v. Railway Company, 16 How., 314.)</p> <p>(4) The attorneys could not enforce compensation for services rendered in furtherance of the scheme, and with the applicant’s approval.</p>

<p>1. Charges—Evidence—Statement of facts—Rulings of the lower court in giving or refusing charges, or in admitting evidence, will not be revised without a statement of facts. The exception to this rule, so far as charges are concerned, is that they will be reviewed only when, taken in connection.with the pleadings and verdict, they are so glaringly erroneous as to leave no doubt that the finding of the jury must have been controlled by the improper instruction of the court. (McGaughy v. Bendy, 27 Tex., 535.)</p> <p>2. Erroneous charge—Verdict—An erroneous charge to the jury will not constitute a reversible error, if, under the facts before the jury, they could have found no other verdict than that rendered. See opinion.</p>

Tried below before the Hon. George McCormick. This was a suit for divorce, brought by appellant. The trial resulted in a judgment for defendant. The facts appear in the opinion of the court.

Tried below before the Hon. A. S. Walker. This was an action of trespass to try title, brought by appellant claiming the south half of lot six, block one hundred and ten, in the city of Austin. The answer' of defendant contained general exception, general denial, “not guilty,” and a special plea alleging title in the defendant. To this answer, plaintiff replied by supplemental petition. The claims of both parties were derived from Moses Goldstein.

—— Appeal from Lampasas. Tried below before the Hon. W. A. Blackburn. This was an action of trespass to try title brought by appellant to recover of W. L. Townsend and F.M. Ramsey two-thirds of a league of land, a part of that originally granted to S. C. Douglass. The plaintiff offered in evidence the patent from the state to S. C. Douglass and other instruments, for the purpose of proving a complete chain of title from the state down to himself.

Tried below before the Hon. Geo. H. ÍToonan. I. Efron, under the firm name of I. Efron & Co., sued P. Floyd & Co., defendants in the court below, to recover one-half of a loss which plaintiff claimed he had sustained in a joint transaction with defendants in buying and selling jointly with them wool, hides and bottles.

Tried below before the Hon. A. J. Hood. On May 30, 1882, the plaintiff, Charles Morin, brought this suit by his next Mend, Damuse Morin, and in his amended petition, filed May 21, 1883, alleged, in substance, that on May 23, 1882, the defendant was the owner of a certain railway known as the Transcontinental Branch of the Texas & Pacific Railroad, which extended through Tarrant county; the minor plaintiff, Charles Morin, being then only thirty months old, casually strayed…

Error from Milam. Tried below before the Hon. W. E. Collard. On February 23, 1882, this suit was filed in the district court of Milam county by A. 0. Thompson and others, as the heirs of W. D. Thompson, deceased, andW. E. Dortch and Sally L. Bradley, two of the heirs of John H. Barnhill, against Mrs. M. H. Powell, Ann C. Gains, Ann D. Badger, A. Carter, heirs of John F. Barnhill, and all other heirs of John H. Barnhill whose names and residences were not known by plaintiff.

Tried below before the Hon. B. W. Bimes. This was an action upon a contract of insurance. The petition alleged that, on November 16,1881, Griffin So Shook effected a policy of insurance in the New Orleans Insurance Association for $1,000. on their stock of merchandise in A quilla, Hill county, Texas; that, on December 19, 1881, the store and contents were destroyed by fire ; that the plaintiffs gave notice of the fire and furnished proof of their loss.

Tried below before the Hon. Geo. H. Hoonan. H. Grenet died February 20, 1882, and by his will Jos. E. Dwyer was appointed independent executor of his estate. To assist in the management of the estate, he employed Bryan Callaghan, an attorney, and agreed to pay him $3,640.72 for his services. Prior to the death of the executor, Callaghan received from him $1,994. 66 on account of that contract. Jos. E. Dwyer died September 14, 1884, and Geo.

Error from Guadalupe. Tried below before the Hon. George McCormick. This was an action for damages for malicious prosecution.

Tried below before the Hon. B. W. Bimes. The parties to this suit were creditors of A. J. Stewart, a retail merchant of Waco. On April 13,1882, Stewart was insolvent, and, being desirous of protecting the claim of appellees, Kellum & Botan, he informed them of his condition, and made them a transfer of his entire stock, they agreeing to return him the amount of the value of the goods over their claim.

Bell. Tried below before the Hon. B. W. Bimes. This was an action for the trial of the right of property to the stock of goods of D. M. Barnwell. On September 28, 1882, the goods were seized under attachment for the appellants. The appellee, Whitehurst, claimed to have bought the goods of Barnwell, on September 27, 1882, and that he was an innocent purchaser.

Error from Mitchell. Tried below before the Hon. T. B. Wheeler. In this suit, defendants in error sought to recover upon a policy of insurance, and on February 11, 1884, filed their origin? 1 petition.

Tried below before the Hon. A. S. Walker. On May 12, 1883, appellants recovered judgment in the district court of Burnet county, against the Austin and Northwestern Railroad Company in an action of damages for $750. Prom this judgment, the railway company appealed to the supreme court, and, on June 1, 1883, filed its supersedeas bond, with appellees as sureties, in the sum of $1,750.

Tried below before the Hon. Win. Kennedy. This was an action of trespass to try title. The general and special exceptions to the petition were sustained, and the plaintiff, Snyder, declining to amend, the case was dismissed. The allegations of the petition are stated in the opinion of the court.

Tried below before the Hon. Wm. Kennedy. This was an action of trespass to try title. The petition of M. D. Roberts, filed August 23, 1883, asserted title to one-third of a league of land in Jones county, it being the site of Old Fort Phantom Hill. The answer of defendants contained a plea of “not guilty,” and a special plea setting forth their title. The trial resulted in a verdict and judgment for plaintiffi The facts are stated in the opinion of the court.

Tried below before the Hon. R. E. Beckham. This was an action by appellee, Bowie, to recover damages for personal injuries sustained by his wife. Mrs. Bowie, with her child, was a passenger for hire in the two-horsestage run by appellant, Gallagher, between Weatherford and Graham. At a stopping place on the road the driver left the stage, without fastening the horses, or leaving anyone to hold them.

Tried below before the Hon. B. E. Beckham. On May 14, 1883, the First National Bank of Weatherford issued and had levied an attachment on the property of Horn & Smith, saloon men, in Weatherford, Texas, which was the prior levy on the goods. On August 7, 1885, the bank recovered judgment for $614.06, and the lien was ordered enforced. The property had been sold by order of court, and the proceeds, $578.66, were in the clerk’s hands.

Tried below before the Hon. T. M. Paschal. Joseph Hey brought this suit for partition of three hundred and twenty acres of land against appellee, L. A. Mumme, claiming* two hundred and forty acres undivided interest in survey Ho. 118, in Medina county. Appellee filed special and general exceptions and, a cross-bill in trespass to try title. Appellant answered appellee’s cross-bill by general denial.

Tried below before the Hon. B. W. Rimes. Appellant, brought an action of trespass to try title and for damages against appellee, on April 8,1882, and alleged that he was entitled to possession of three lots of land, the same set apart and allotted to James Patterson by commissioners of partition and decree of the district court of McLennan county, in cause Ho. 3153, which was particularly referred to for description, and that defendant dispossessed plaintiff on May 1, 1882.

Tried below before the Hon. A. W. Morsund. Appellee brought this suit against appellants, J. B. Harrell, John W. Harrell and George Keeney, for damages, alleging that plaintiff was the surviving widow of Sterling A. Houston, who died in March, 1874; that she was administratrix of his estate, and was in possession of three hundred and twenty acres of land, survey Ho. 127, belonging to the community estate constituting their homestead, and situated in San Saba county; that in…

Error from McLennan. Tried below before the Hon. B. W. Rimes. This was an action of trespass to try title. The answer of defendant, James Machón, contained a general exception, general denial, and plea of “not guilty.” The trial resulted in a verdict and judgment for plaintiff. Motions for new trial and in arrest of judgment were overruled. Farm lot eighteen of the city of Waco was immediately west of Eighth street, and between that street and farm lot twenty.

Tried below before the Hon. Jo. Abbott. This was a suit for specific performance, brought by G. A. Rucker against W. T. Moor and his wife, M. E. G. Moor, S. L. Hamilton and his wife, Jane Hamilton, J. C. Wilkison, L. D. Lowder, Thomas Den-ton, Theophilis Denton, J. A. Sledge, William Hurley, Eugenia Pearson and J. W. Pearson.

Tried below before the Horn Wm. Kennedy. This suit was instituted in the district court of Dolan county, September 17,1884, by appellee against J. M. Formwalt, Geo. W. Baylor, Garland Odom and T. L. Odom for $10,000 damages, claimed to have been sustained by appellee by reason of a wrongful arrest and false imprisonment.

Tried below before the Hon. A. S. Walker. The appellees, Zimpleman and Bergen, brought this suit August 5, 1884, against the appellant, Jos.

Tried below before the Hon. B. B. Beckham. This was a suit in which the appellee, by an action of trespass to try title, sought to recover of the appellant, lots five and six in Dugan’s block, of Weatherford, Parker county, and $30 per month, as rent, for the use thereof from November 5, 1885. The petition was filed January 6, 1886, and alleged that the appellee was in possession on November 5, 1885, when he was ejected by appellant.

<p>Appeal from Wilson. Tried below before the Hon. Geo. McCormick.</p> <p>The opinion states the case.</p>

Tried below before the Hon. Wm. Kennedy. On July 16, 1884, the appellant executed an affidavit and claimant’s-bond under the statute to try the right of property to an undivided one-third interest in and to a certain herd or stock of cattle, numbering about twenty-five hundred head, running at large on the range known as the Cornelius Bros. & Co.’s range, in Scurry and adjacent counties, and known as the Cornelius Bros. & Co.’s stock of cattle.

Tried below before the Hon. R. Maltbie. Appellee, A. H. Coffin, as assignee, brought suit in the district court of Grayson county, on February 7, 1883, to recover of J. A. McKee, United States marshal, the value of certain wagons, buggies, etc., alleged to have been unlawfully appropriated by McKee. Plaintiff claimed the goods as the assignee óf Kniffin Bros, under a deed of assignment made December 6, 1882.

<p>1. Revised statutes, article 670, construed—Art. 670, R. S., was intended as de~ olaratory of what the law was previous to the passage of the Revised Statutes.</p> <p>2. Same—-New counties—The acts of the legislature, which create new counties, do no more than provide for their organization; and until a new county is actually organized or attached to some other county or district, its territory remains subject to the jurisdiction of the old county. (O’Shea v. Twohig, 9 Tex., 336, and Clark v. Goss, 12 Tex., 396, reviewed and followed.)</p> <p>3. Same—Registration—Until the new county is so organized or attached, transfers of lands located in it should be registered in the old county.</p> <p>4. Same—Being so registered, it is not necessary to register them again in the new county when organized, nor in any county to which it may be thereafter attached for judicial purposes. (Following McKissock v. Colquhoun, 18 Tex., 148, and other cases.)</p> <p>6. Same—The act of March 30,1881, expressly declared that the registration of conveyances of land lying in unorganized counties, made previous to its passage in the land district to which such county was attached, shall not be aifected by that act.</p>

Tried below before the Hon. W. E. Collard. The opinion states the necessary facts.

Tried below before the Hon. H. Teichmueller. Appellee, plaintiff below, claiming as the assignee of P. R. Turner & Co., a mercantile firm composed of P. R. Turner, W. B. Moore and J. E. Peters, and of the several members of the firm, by virtue of a certain deed of asssignment, executed on July 4, 1883, instituted a suit in the district court August 25, 1883, against appellants, defendants below, to recover the sum of $10,000, as damages for an alleged seizure by H. E.…

Tried below before the Hon. L. W. Moore. This was an action to recover damages for an unlawful seizure and conversion of property. It was brought by J. V. Hutchins, as assignee of P. B. Turner & Co.—P. B. Turner, W. B. Moore and J. E. Peters—against H. E. Barber, sheriff of Hays county, and the sureties on his official bond, the damage being placed at $10,000.

Tried below before the Hon. B. W. Rimes. This suit was brougt by the appellee in the district court of Bell county on February 26, 1880. - Plaintiff’s petition was an ordinary declaration npon a promissory note given for the purchase money of land, describing the land and praying for foreclosure of the vendor’s lien thereon, alleging that plaintiff was the owner of the note by indorsement of the same by P. G. Rucker, the payee, to Saunders & Co., and by Saunders & Co. to…

Tried below before the Hon. T. L. Nugent. This was an injunction proceeding to stay execution. On March 25, 1881, the district court of Hood county rendered a judgment in favor of Lawson and Baker, in a proceeding instituted by the clerk of the court, to ascertain the owners of $542.20, which had been paid to him by T. W. House, under a judgment in the case of T. W. House v. E. G. Peters, Jas. Baker, Jack Lawson and William Fant. On April 12, 1881, B. G-.

Tried below before the Hon. J. M. Hall. This suit was instituted in a justice court of Bosque county by appellee, Mrs. Sarah E. Fossett, on December 22, 1883, to recover of the appellant the sum of $199 damages, alleged to have been causedby a fire caused by one of appellant’s engines when running on its road through .appellee’s farm. The case was tried in the justice court and judgment was rendered against the railway company for the amount sued for.

Tried below before the Hon. B. F. Williams. This was an action of trespass to try title. Benben E. White and John Snodgrass, with other heirs of David Snodgrass, brought suit to recover of Thomas P. Martin, and others, six hundred and forty acres of land in Archer county.

Tried below before the Hon. B. Maltbie. On September 1, 1885, the appellee filed his petition in the district court, seeking to recover of the appellant $10,000 damages, alleged to have been sustained by him at the main street crossing on appellant’s road, in the city of Denison, and alleging that when he started across appellant’s yards, tracks and switches, the way was clear and unobstructed, but, while plaintiff was so crossing, an engine owned by defendant suddenly…

Tried below before the Hon. F. M. Davidson, special judge. This was an action of trespass to try title, brought by the appellee against appellants for six hundred and forty acres of’land patented to W. J. Bussell, situated in Denton county.

<p>1. Charge of court—Pleadings—The court should charge the jury in accordance with the interpretation of the pleadings acted upon by the parties.</p> <p>2. Practice—Statement of facts—A statement of facts made up by the court contained no proof of facts material to appellee's case. Held, the defect was no ground for reversal unless urged by an assignment.</p> <p>3. Homestead—See opinion for use of property held to constitute it part of a homestead.</p> <p>4. Practice—Assignments—In order to be considered, assignments must specify what is complained of as error.</p>

<p>Appeal from Tom Green. Tried below before the Hon. Wm. Kennedy.</p> <p>The opinion states the facts.</p>

Tried below before the Hon. T. M. Paschal. In May, 1854, at Hew Orleans, La., Geo. Butler entered into an agreement with Ernest Altgelt, by which- he appointed Altgelt his attorney in fact to locate a certificate, and in consideration of the services to be rendered by Altgelt, bound himself to give him one-third interest in the land to be located. On December 5, 1854, the general land office issued a duplicate certificate to Butler for one-third of a league.

<p>Appeal from Parker. Tried below before the Hon. B. E. Beckham..</p> <p>The opinion states the case.</p>

Tried below before the Hon. Wm. Kennedy. This was an action of trespass to try title, brought in the district court of Howard county, September 25, 1885, by appellees against appellant for lot eight, block five, in the town of Big Springs. The opinion states the necessary facts.

<p>Error from Archer. Tried below before the Hon. B. F. Williams. The opinion states the case.</p>

Tried below before the Hon. D. P. Marr. This suit was instituted by appellant in the district court of Maverick county, February 10, 1885, against appellees, praying a mandamus to compel appellee, Hector, to survey, and to return to the land office the field notes of the land described in plaintiff’s petition as a homestead donation for plaintiff, under the act of 1879, (E. S., ch. 9, title 59, art. 3987, et seq.'), and also to procure the cancellation of a patent under…

Tried below before the Hon. M. D. Priest, Special Judge. This was an action for damages brought by the appellant, as assignee of Michael Spiro, against W. T. Maddox, as sheriff of Tarrant county, and against the other defendants, as sureties on his official bond.

Error from Live Oak. Tried below before the Hon. D. P. Harr. This was an action of trespass to try title to fifteen hundred acres of land in Live Oak and Bee counties. The suit was filed by Mrs. Jackson against Poole in the district court of Live Oak county, on January 9, 1884. Defendant answered at the March term, 1884, by a general demurrer, general denial and a plea of not guilty, and the cause was continued by agreement.

Tried below before the Hon. Thos. M. Paschal. The petition of plaintiff, B. M- Thomson, was filed March 1, 1884. March 4, 1885, the judgment of the court was rendered sustaining exceptions to the petition and dismissing the case. The allegations oi the petition are stated in the opinion of the court.

Tried below before the Hon. Win. J. Austin, Special Judge. This was an action of trespass to try title and for partition, brought by Donna J. Stark and John T. Stark, husband and wife, in the district court of Denton county, Texas, on August 22,1884, against J. A. Carroll and G. D. Briar, for recovery of one thousand four hundred and ninety-four and nineteen one-hundredth acres of land out of the Sarah Winfrey survey, in Denton county, Texas.

Tried below before the Hon. B. W. Bimes. On March 9, 1877, Mary A. Blocker filed her original petition in a certain suit against D. W. King and Isaac Ham, claiming to be a creditor of Marshall King at the time the latter fraudulently conveyed to D. W. King, his son, four hundred and eighty acres of land, of which the one hundred acres herein sued for was part; that such conveyance was fraudulent and void; that Isaac Ham bought the one hundred acres with notice of the fraud,…

<p>I. Land certificates—Adverse possession—Limitation—Plaintiffs claimed the land in controversy as the heirs of the party to whom the certificate, under which the land was located, issued. Defendants claimed title by virtue of an adverse possession of the certificate for two years before it was located. Held:</p> <p>(1) A land certificate is personal property, as is a promissory note or other evidence of indebtedness, and while not technically a chose in action, it has many of the characteristics of such property.</p> <p>(2) If the true owner of a certificate elect to treat its adverse possession as a conversion, and seek to recover its value, he must bring his action within two years from the accrual of his cause of action. (Andrews v. Smithwick, 20 Tex., Ill; 24 Tex., 494, and 34 Tex., 544.)</p> <p>(3) His failure to do so does not annul his right to recover that to which the paper-evidenced his title, nor can it confer such right upon another. Title to property corporeal or incorporeal, cannot be acquired by adverse possession of the mere evidence of the right of the true owner.</p> <p>(4) The right which one has through an unlocated land certificate is an intangible thing, which rests in the true owner, and cannot be adversely possessed bv another.</p> <p>(5) When a land certificate is sold under execution or in course of an administration, the right to acquire land under it passes to the purchaser on the theory that the certificate symbolizes the right which is the thing sold in such cases, as it is when the owner of such a certificate makes a voluntary sale.</p> <p>(6) Oases reviewed.</p>

Tried below before the Hon. T. C. Alexander, Special Judge. This was a suit by the appellees, Cameron & Co., against the appellant, S. E. Moss, for the recovery of $778.74, due on open account for lumber sold and delivered by Cameron & Co., to Moss, at certain intervals between September 8, 1883, and December 14, 1883.

Tried below before the Hon. Jo. Abbott. This was an action of trespass to try title. Mrs. M. J. Arnold, joined by her husband, A. M. Arnold, filed an amended original petition November 9, 1883, asserting title to twenty acres of land, and asking rents, damages, etc. Defendant Leatherwood answered by a plea of “not guilty.” Defendants John B. and Martha L. West disclaimed as to ten acres of the land, and pleaded “not guilty” as to the remainder.

Tried below before the Hon. Jo. Abbott. This was an action for damages for personal injuries.

Tried below before the Hon. H. Teichmueller. This was a suit for injunction by W. H. Bussell and twenty-four other citizens and tax-payers of Blanco county, Texas, for themselves, and in behalf of all the other citizens and tax-payers of that county, against the commissionérs court of Blanco county, W. A. Blackwell, county treasurer, Phil.

Tried below before the Hon. D. P. Marr. This was a suit of trespass to try title for 900i acres of land out of the J. M. Jean survey of 3602 acres in McMullen county. The opinion states the facts.

Tried below before the Hon. J. M. Hall. About March 1, 1878, S. P. Hollingsworth sold and conveyed to W. H. Have, by general warranty deed one hundred acres of land in Bilis county, Texas, for which Have executed his note to Hollingsworth for $500, payable in five years, with interest from date at ten per cent., payable annually, in advance, interest to bear interest, if not paid at maturity; about July 15, 1878, Hollingsworth sold and conveyed by general warranty deed to…

Tried below before the Hon J. M. Hall. S. 0. Upshaw and Jno. P. Cox filed their application in the county court of Hill county on April 15, 1883, for the probate of the last will and testament of James H. Martin, deceased, wherein they alleged that Martin resided in Hill county, Texas, and died March 28, 1883, leaving an estate of about $8,000 or $10,000; that he left a will in which S. C. Upshaw and Jno.

Tried below before the Hon. B. F. Williams. Appellant, M. M. Purinton, joined by her husband, brought suit for the purpose of restraining F. M. Davis, sheriff of Wichita county, from selling seven tracts of land under an execution in favor of S. D. Cook against W. W. Purinton, the husband of plaintiff.

Tried below before the Hon. J. M. Hall. On July 6, A. D. 1885, the appellee, the Gulf, Colorado and Santa Fe Bailway Company instituted this suit in the district court of Johnson county, Texas, against appellant, the city of Cleburne, and the mayor and aldermen and tax collector of appellant, for debt on certain warrants or scrip, and for injunction.

Tried below before the Hon. Anson Bainey. On August 6, 1884, the plaintiffs, S. Jacobs, Bernheim & Co. recovered a judgment in the county court of Galveston county, against A. E. McCarty for the sum of $464.16. On September 12, 1884, an execution was issued on this judgment, and afterwards this writ was levied by the sheriff of Ellis county upon one-hálf interest in four hundred head of cattle running on the range in Ellis county.

<p>1. Deed—Condition—Forfeiture—Construction—A deed stipulated that the land conveyed l)y it should be used “for the purpose of a street only; and in case the same shall be used for any other purpose this deed shall be null and void, and the title to said premises shall revert to” the grantors. It imposed the same condition upon any assignee of the grantee. Held, A forfeiture would have resulted if the grantee or its assignee had let or used the premises for other than the stipulated use, or had-unreasonably delayed in stopping a use not consented to by it and prohibited by the deed.</p> <p>2. Same—Facts—See opinion for facts under which this court could not hold as excessive a delay of ten months by the owner of the land before stopping such a prohibited use by a trespasser.</p>

<p>1. Practice—Statement of facts—The statute authorizes the district judge of his own motion to grant leave to file a statement of facts within ten days after the adjournment of the term. It is only in cases where it is desired to have his refusal to grant such leave reviewed in the supreme court that it is necessary that a written motion, asking leave to file a statement of facts within ten days after the term, should appear in the record of the case.</p>

Tried below before the Hon. G. H. Boonan. On March 27, 1885, appellees filed their petition in the district court of Uvalde county, alleging that they were seized in fee and were the legal and equitable owners of one-third of a league of land in Uvalde county, describing the same by metes and bounds, patented to George W. Stramler, and located by virtue of headright certificate Bo. 186, issued by the board of land commissioners of Montgomery county, Texas, February 2, 1838,…

Tried below before the Hon. W. E. Collard. This was a suit by Faubion against Rogers on a breach of covenant of warranty of title to 245 acres of land out of the Gafford league in Milam county. On July 25, 1857, B. R. Thompson executed to Perkins & Phillips a bond for title to 1063 acres of land out of the league, conditioned to make them title on the payment of their notes for the purchase money.

Tried below before the Hon. L. A. Walthall, Special Judge. This was a proceeding to probate an olographic will and two olographic codicils, made by James Vance, of San Antonio, deceased, and bearing date, respectively, May 14, July 15 and July 24, 1870. The answer set up the defense of insanity.

Tried below before the Hon. Richard Maltbie. On June 26, 1882, Cullers & Henry filed in the district court of Grayson county, their petition against A. P. James, claiming an indebtedness against him on account for goods sold and delivered in the sum of $2,822.87, and on the same day sued out a writ of attachment against the property of James, alleging as ground of attachment, that James was about to convert his property into money, for the purpose of placing it beyond the…

Tried below before the Hon. James Masterson. Hackworth, the appellee, brought suit against Kendall, the appellant, in the district court of Fort Bend county, on March 1, 1883. The allegations in the original petition were in substance to the effect that the parties to the suit, in 1874, formed a partnership for the purpose of buying large tracts of land and selling them out in small tracts to settlers.

<p>1. Tenants in common—Improvements—Equitable charge—By improving land held in common a tenant in common acquires no right, title or interest in the portion improved; but rather an equitable charge upon it. And it has been held that he has a lien to secure compensation for necessary or proper improvements on the common property.</p> <p>2. Same—Equity—Equity may protect the co-tenant who has made improvements on the common property, by setting apart to him, in partition, the portion improved, if this can be done without detriment to the other co-tenants; or he maybe protected, in proper cases, by awarding compensation for improvements beneficial to all, or by considering the value of improvements so made in the adjustment of equities growing out of the fact that he has received and become accountable for rents.</p> <p>3. Same—Assignment—Such a claim of the co-tenant for improvements is assignable; but even if it is secured by a lien, it would not pass to a purchaser from a co-tenant through a deed not sufficient to pass a debt secured by lien created by contract; and a debt secured by mortgage upon the common property, executed by one co-tenant, would not pass by a quit claim deed purporting to convey only the right, title and interest of the mortgage in the common property.</p> <p>4. Same—It is probably true that such a claim would pass by a warranty deed purporting to convey land so improved, or even by a quit claim deed in terms purporting to convey the improvements.</p>

<p>Ebbob from Anderson. Tried below before the Hon. E. A. Williams.</p> <p>The opinion states the case.</p>

Tried below before the Hon. James I. Perkins. This was an action for the trial of the right of property to certain goods valued at $800, levied upon by virtue of a writ of attachment issued out of the district court of Nacogdoches county on November 28, 1883, and levied on a part of the stock of goods in a certain house known as the Old Stone Fort, as the property of B. Cole, the writ being in favor of appellants and against B. Cole.

<p>Appeal from Harrison. Tried below before the Hon. Wm. Stedman, Special-Judge.</p> <p>The opinion states the facts.</p>

Tried below before the Hon. F. A. Williams. This action was brought in the district court of Anderson county, Texas, by J. F. Callbreath, appellee, against the Missouri Pacific Railway company, for damages for personal injuries inflicted on him while he was in the employment of the railway company as a servant.

<p>Appeal from Anderson. Tried below before the Hon. F. A. Williams.</p> <p>The facts are stated in the opinion.</p>

<p>1. Vendor and vendee—Prior debt—Failure of the vendee to credit the vendor with the amount of the purchase money, under an agreement that it be credited upon the vendor’s prior indebtedness, is of importance in a trial of the right of property, only in determining the bonafides of the sale.</p> <p>2. Executed sale—Collateral agreement—See opinion for case in which the sale was complete and the title passed, although there was an executory agreement as to delivery.</p> <p>3. Justice court—Appeal—Objections cannot be heard in this court, for the first time, to irregularities occurring in perfecting appeal from the justice court to the district court.</p>

Tried below before the Hon. Felix J. McCord. A. M. Murphy brought this suit against H. H. Bowland & Bro. for damages alleged to have resulted to him from the fall of a brick building owned and occupied by Murphy at the time as a jewelry store, situated in Tyler, Smith county, Texas. It was alleged that the fall of the building was caused by the neglect and careless acts of Bowland & Bro. in making an excavation on the adjoining lot.

Tried below before the Hon. Felix J. McCord. This was a suit by P. J. Willis & Bro. on two notes, accompanied by attachment proceedings. The defendant, F. L. Lowry, reconvened for actual and exemplary damages. On the trial the amount of the two notes ($2288.85) was adjudged in favor of Willis & Bro., and the sum of $2980.27 adjudged in favor of defendant, Lowry, as actual damages. This left the net judgment of Lowry, defendant, against Willis, plaintiff, $641.42.

Tried below before the Hon. Edwin Hobby. This was an action of trespass to try title. It was originally brought by J. H. Brown & Co. against Wm. Chambers and Birmah A. andBial Smith, and involved two tracts of land. The facts are stated in Brown y. Chambers, 63 Tex., 131. Birmah A. and Bial Smith are appellants, and the suit involved the one of the two tracts containing 530 acres.

<p>1, Tenants in common—Pleading—One tenant in common or joint tenant cannot maintain a suit for the recovery of rent when the contract is joint and the rent is to be paid to them jointly; but a petition defective in this respect can be amended. (Authorities cited.)</p> <p>2. Landlord—Repairs—Custom—A landlord is not bound to repair the premises unless he covenants or agrees so to do. The rights of the parties under their contract can not be changed by proof of a local custom different from the rule of law.</p>

<p>1. Void judgment—Injunction—In this state injunction is the appropriate remedy to prevent enforcement of a void judgment. (Authorities cited.)</p> <p>2. Personal judgment—Validity—A personal judgment against one over whom no-jurisdiction has been acquired, is a nullity.</p> <p>,3. Jurisdiction—How acquired—Jurisdiction is acquired over a plaintiff by his voluntary submission of a cause of action to the court, and one instituting proceedings for the revision of the action of an inferior court, thereby gives to the court exercising appellate or revisory power, jurisdiction over his person.</p> <p>4. Same—Jurisdiction over a defendant is acquired by his voluntary appearance, or the service upon him of such process as the law provides.</p> <p>-5. Same—Ratification—A judgment was rendered against defendant in the justice court. Subsequently a person, without defendant’s knowledge or authority, sued out a writ of certiorari by which the cause was taken to the district court. In a proceeding by defendant to enjoin enforcement of the judgment there rendered against him, Held, unless defendant availed himself of the unauthorized proceeding by certiorari, as by asking an adjudication under it, or in some way ratified the act of the person who caused it to be instituted, while it was pending, it was a nullity and he was entitled to relief.</p>

<p>Error from Morris. Tried below before the Hon. W. P. McLean.</p> <p>The facts are stated in the opinion.</p>

<p>1. Married woman—Separate property—Profits—The profits of investment of a married woman’s separate property are community property. The gross gains arising from a sale of goods bought with the wife’s' separate property are community property. (Authorities cited.)</p> <p>2. Same—Investment—Proof—Property of the wife converted into other property does not lose its character, but is still to be regarded as her separate estate. The proof tracing and identifying it in its changed condition must be clear and satisfactory. (Authorities cited.)</p> <p>3. Credit of the wife—Community property—Property purchased by the wife on credit for merchandising purposes, is community property. (Following Epperson v. Jones, 65 Tex., 425.)</p> <p>4. Community and separate property—Presumption—Liability—Property in the hands of either husband or wife during marriage is presumed to be community property. The burden of proof is upon the wife to remove that presumption by proof of her separate right; and unless she does sober property can be subjected to payment of the husband’s debts.</p> <p>5. Married woman—Partnership—The wife cannot be a partner in mercantile business. By contributing her separate means to the capital stock of a partnership, she becomes a creditor of the concern for the amount contributed. (Authorities cited.)</p>

Tried below before the Hon. W. P. McLean. The opinion states the facts.

<p>Appeal from Bowie. Tried below before the Hon. W. P. McLean.</p> <p>The facts are stated in the opinion.</p>

<p>1. Carrier of passengers—Failure to stop at destination—Contributory negligence—A railway company sold a passenger a ticket to G. The train did not stop at G., and the passenger was put off the train at W., at midnight. Held:</p> <p>(1) The company’s first breach of duty was in selling the passenger a ticket to G., when the train did not stop at that place. After finding it impossible to put her off at G., it was its duty to leave her at the nearest station where she could obtain comfortable accommodations, and from which she could travel with the least delay to G. (Railway Company v. Gilbert, 64 Tex., 536.)</p> <p>(2) This having been done it was the passenger’s duty to use ordinary care to prevent injuries to herself greater than the situation demanded.. See opinion.</p> <p>(3) (Railway Company v. Gilbert, supra, reviewed, and other authorities cited.)</p>

Tried below before the Hon. W. P. McLean. This was a suit for damages brought by John S. Scott against the East Line So Bed Biver Railroad Company on May 8, 1886. The petition claimed that plaintiff was in the employment of the company on the engine of its pile-driver, and on February 6, 1886, was injured by the explosion of the boiler. There was a judgment by default for $1,500 damages.

<p>1. Jurisdiction—Non-resident—A non-resident can e sued in the courts of this state without bringing before the court such of his effects as are within the state.</p> <p>2. Pleading—A plea to the merits, after a plea to the jurisdiction has been overruled, is a waiver of all objections to the process and of all objections to the jurisdiction, except those contained in the plea overruled.</p> <p>3. Case approved—Liles v. Woods, 58 Tex., 416, approved.</p>

Tried below before the Hon. James I. Perkins. This was a motion to retax costs, made by plaintiffs in the case of King & Davidson v. B. D. Sapp, in the district court of Nacogdoches county. The motion was sustained. The necessary facts appear in the opinion of the court.

Tried below before the Hon. W. P. McLean. This case was before the supreme court at a former term and was reported in 62 Tex., 636. The facts are sufficiently stated in the opinion.

<p>Appeal from Marion. Tried below before the Hon. W. P. McLean.</p> <p>The opinion states the facts.</p>

<p>Appeal from Harrison. Tried below before the Hon. A. J. Booty.</p> <p>The opinion states the facts.</p>

Tried below before the Hon. F. A. Williams. This action was brought by P. S. Graves against W. W. Allen, H. W. Hunter and J. F. Watts, to recover the amount of a debt and interest. On January 1,1885, Wm. W. Allen and others, executed and delivered to the appellant their promissory note, as follows, viz: “Montgomery, Ala., January 1, 1875.

Tried below before the Hon. Felix J. McCord. This was an action in the district court of Upshur county, Texas, by Mrs. E. H. Smith, the surviving wife, Laura C. Fort, with her husband, E. E. Fort, and Richard J. Atkinson, the surviving children of Alfred Atkinson, deceased, against O. A. Fitts and S. M. Smith, sureties, and Mrs. Ann Fitts, the surviving wife of James Wilburn, another surety on the bond of D. C. Boger, deceased, administrator of the estate of Alfred Atkinson,…

Tried below before the Hon. F. A. Williams. The plaintiffs in the district court and appellees in this court, sued the defendants, Beagan and Word, the appellants, and a number of parties in an action of trespass to try the title to the John Arthur one-fourth of a league of land situated in Anderson county. The plaintiffs were the children of James E. Box and Mary Box, deceased, and claimed the land as devisees under the will of Jas. E. Box and as his separate property.

Tried below before the Hon. F. A. Williams. This was an action by appellee to recover damages for personal injuries.

<p>1. Minor—Next friend—It is well settled since the adoption of the Revised Statutes suit can be maintained in this state by a next friend for the benefit of a minor ; and in this respect no distinction has been made between suits for land and other actions. (Authorities cited.)</p> <p>2. Homestead—Mortgage—A mortgage upon a homestead is wholly null and void, and no subsequent acquisition of another homestead by the mortgagor can give it validity. (Inge v, Cain, 65 Tex., 75.)</p> <p>3. Evidence—Title—Declaration of decedent—Declarations of a decedent, made while he was in possession of land, in derogation of his title and in qualification of his possession, are admissible in evidence. Declarations of a decedent tending to show that he had an absolute title to the land, are inadmissible.</p> <p>4. Charge—Repetition—A judge ought not to repeat a principle already given in charge to the jury, when this would give it undue prominence. (Powell v. Messer, 18 Tex., 401; Traylor v. Townsend, 61 Tex., 144.) See opinion.</p> <p>5. Charges—Practice—Complaint cannot be made for the first time in this court of the general character of instructions to a jury, unless special charges of a more specific character were asked.</p> <p>0. Demand for jury—Practice—It is a sufficient excuse for not demanding a jury on the first day of the term, that there was at that time no judge competent to receive the demand and enter the order.</p>

<p>Appeal from Bowie. Tried below before the Hon. W. P. McLean.</p> <p>The opinion states the facts.</p>

<p>Appeal from Titus. Tried below before the Hon. W. H. Baldwin, Special Judge.</p> <p>The opinion states the facts.</p>

<p>1. Railway companies—Rights of passengers—Contract—Agents—A passenger on a railway train has no right to demand that he be put off at a point where there is no regular station, unles he has contracted for that privilege with some agent of the company having the real or apparent power to make such a contract.</p> <p>2. Same—Authority—The frequent exercise of power by an agent, which from its nature must have been known to the principal, may be regarded by persons dealing with the agent as sufficient evidence of the real existence of the power which the agent assumes to exercise. See opinion. (Authorities cited.)</p>

<p>Appeal from Wood. Tried below before the Hon. Felix J. McCord.</p> <p>The facts are stated in the opinion.</p>

<p>1. Right of action- Practice—Reconvention—Limitation—Plaintiffs, commission merchants, agreed with R., who was a member of the defendant firm, to sell his cotton, and, with his consent, to apply the proceeds thereof to payment of defendants’ firm notes in the hands of plaintiffs. In an action upon the notes, defendants pleaded in reconvention the damage resulting from an alleged neglect of duty by plaintiffs in selling R.’s cotton. Held, If plaintiffs violated any duty, defendants as a firm neither owning nor having any interest in the cotton gold, could not complain. They could not set up a cause of action which did not enure to them.</p> <p>2. The claim in reconvention was barred if two years had elapsed between its accrual and the filing of the plea. (FollowingFowler v. Stoneum, 11 Tex., 478.)</p>

<p>1. Improvements—When a part of freehold—Fact case.—The owners of a tract of land, which was of very little value, erected a building upon it in which they placed valuable machinery, and attached it to the building with a view to carrying on a permanent business. Held, as between a defendant in execution and a purchase at sheriff’s sale, the machinery would be deemed a part of the freehold. (Moody v. Aikin, 50 Tex., 65; Hutchings v. Masterson, 46 Tex., 651.)</p> <p>2. Realty—Trespass—Measure of damages.—When the owner of realty is dispossessed by a trespasser he can not treat the property as belonging to the wrong doer and recover its value, as in case of personal property; but he must sue for the specific property, and may recover the value of the rents and all damages resulting in legal contemplation from the trespass. In estimating these damages, the general rule is that the defendant is only answerable for the natural, ordinary and reasonable consequences of his conduct. (Sut.h. on Damages., 57.)</p> <p>8. Same—Fact case.—A tract of land, with a factory and machinery located thereon, was sold under execution, and purchased by the plaintiffs in execution; they continued to operate the factory through defendants in execution as their employes and agents until it was destroyed by fire. Defendants in execution, claiming the property as exempt from forced sale, sued for the land and the value of the factory, etc. Held-.</p> <p>(1) Assuming that the property was exempt, if the burning of the factory and its contents was caused by negligence on the part of plaintiffs in execution after they took possession, then, as a new wrong and intervening cause, it rendered them liable.</p> <p>(2) Unless the destruction was caused directly and immediately by their acts, or was the result of a series of causes and effects, proceeding one from the other, and not speculatively inferred, but established by evidence, as other facts re required to be proved, plaintiffs in execution were not liable for the loss sustained. (Porter v. Miller, 7 Tex., 468, reviewed.)</p> <p>4. Charge—Evidence—Practice.—In a suit for the recovery of land, it is error to charge the jury that they may find rent for plaintiffs, when no evidence has been introduced to show the rental value of the premises. (Blanton v. Mayes, 58 Tex., 422, etc.)</p> <p>5. Mechanics’ tools—Exemption—Abandonment of trade.—In analogy to- the rule laid down in Miller v. Menke, 56 Tex., 539; McDonald v. Campbell, 57 Tex., 614, etc., when a mechanic abandons his trade his tools are no longer exempt from execution. See opinion for acts held not to constitute abandonment of a trade.</p> <p>6. Homestead—Limitations—Constitution of 1876—The constitution of 1876 places only two limitations upon property exempt as a place of business; it shall not exceed §5,000 in value when designated as a homestead, and it shall be used as a place to exercise the calling or business of the head of the family.</p> <p>7. Same—Improvements.—Neither the value of the improvements placed upon it, nor the nature and extent of the operations carried on there, will subject it to forced sale; and all machinery annexed to the freehold, so as to become a part of the realty, becomes exempt as part of the homestead.</p> <p>8. Revised Statutes, Article 2335—Tools of trade—Apparatus—The phrase “tools of trade ” used in Article 2335 Revised Statutes, applies only to simple instruments used by hand. The word “ apparatus ” has a wider meaning, and embraces such minor machinery as may be operated by hand, and such as has been held not to be included under the term “tools,” as used in similar enactments. (Buckingham v. Billings, 13 Mass , 82; Bailee v. Waters, 17 Ala., 482.)</p>

Tried below before the Hon. W. P. McLean. This was an action upon a bond for the withdrawal of an estate from administration. On the trial, the general and special exceptions to the petition were overruled, the special exceptions to the answer were sustained, and judgment was rendered in favor of plaintiffs, Bonnie Bros., against A. A. Thomas, J. M. Bender and W. P. Scott, for the amount of their claim, $362.81, with interest.

Appeal ftom Morris. Tried below before the Hon. S. P. Pounders, Special Judge. This case was before the supreme court once before, and was reported in 64 Tex., 545. The necessary facts are stated in the opinion.

Tried below before the Hon. W. P. McLean, Action of trespass to try title brought by the appellee, O. C. Burke, against the appellant, Taylor, for the recovery of section twenty (20) school land, situated in Bowie county, alleged to have been bought by J. W. Taylor from the state, as an actual settler, on October 13, 1884, and conveyed by J. W. Taylor to 0. 0. Burke, on January 26, 1885.

<p>Appeal from Kaufman. Tried below before the Hon. Anson Bainey.</p> <p>The facts are stated in the opinion.</p>

<p>1. Insurance—Benefit certificate—Security to Creditor—W. secured a benefit-certificate, in favor of his wife, from the “Ancient Order of United Workmen,” and upon his failure to pay the required assessments, the right to receive under it was suspended. The certificate was renewed in the name of L., “ creditor,” who paid the past and future assessments and charged them to the account of W. L. afterward came into possession of additional claims against W., and on his. death sought to subject the money received under the certificate to the payment of all the claims. Held:</p> <p>(1) The nenewal of the certificate was evidently intended solely to give L. a security for the debt then existing, and for such sums as he should have to pay in the way of assessments, and L. understood that the sums paid on assessments were simply loans to W.</p> <p>(2) Therefore W’s representatives were entitled to the surplus after payment of the original debt and sums advanced to pay assessments. But if L. had secured and kept up the certificate with his own funds, W’s representatives would have had no claim. (Bliss on Ins., 326.)</p> <p>(3) L’s subsequently acquired claims, not having been in contemplation of the parties when the certificate was renewed, he had no power to secure their payment out of the money derived from it.</p>

<p>Appeal from Hunt. Tried belowjiefore the Hon. J. A. B. Putman.</p> <p>The opinion states the facts.</p>

<p>1. Citation—Requisites—Practice.—A citation gave the name of the partnership but not the names of its members. Defendant was net a resident of the county where suit was brought, and a copy of the petition, containing both the partnership and individual names of plaintiffs, was served upon defendant along with the citation. Held, the citation was sufficient.</p> <p>2 Same—Return.—The exact language of Art. 1220, Revised Statutes, need not be used by an officer in making his return. (Clark ». Wilcox, 31 Tex., 328.) See opinion for a sufficient return.</p> <p>3. Judgment by default—Allegations of petition—Practice.—A petition subject to special exception, but good on general demurrer, will sustain a judgment by default. (Bledsoe v. Willis, 22 Tex., 660, approved, and other authorities compared.)</p>

Tried below before the Hon. D. H. Scott. This was an action of trespass to try title. The appeal was taken upon an agreed statement of facts presenting two points. The record of the deed from Bingo to Barnes did not show that the officer taking the acknowledgment of the deed had impressed it with his official seal. A copy of that record was offered in evidence. The facts relating to the other point appear in the opinion of the court.

<p>1. Special judge—Jurisdiction—Presumption.—When the transcript of a case on appeal shows by the recitals of the j'udgment, that the district judge was disqualified, and that a special judge whose name is mentioned as special judge in the caption of the transcript, was appointed by the governor to try the cause, the appointment of such special judge will be presumed to have been regular. After the parties have, without objection, submitted to the jurisdiction, and when the assumption of the authority by the special judge to try the cause has not been assigned as error, the supreme court will take jurisdiction.</p> <p>2. Cases reviewed and approved.—(Schultze v. Lempert, 55 Tex., 273, and Brinkley v. Harkins, 48 Tex., 225, reviewed and approved.)</p> <p>3. Assignment of error.—An assignment of error based on a bill of exceptions taken to the admission of testimony, when the bill was taken and filed after the adjournment of court, cannot be considered.</p> <p>4. Trusts—Agency—Ratification.—When a deed of trust authorizes a trustee, his legal representative or agent, to sell the land conveyed by the trust deed, the agent appointed by the trustee, becomes trustee in fact, and the method of his appointment becomes immaterial when it is not prescribed by the deed itself. When the cestui que trust was the original trustee named in the deed, and was not only the beneficiary for whom it was made, but became the purchaser at a trust sale made by one assuming to act as his agent, the agency was thereby ratified and the method of the agent’s appointment was immaterial.</p> <p>5. Same—Estoppel—Case followed.—One who is present at a sale made by one assuming to act as agent under such circumstances, who has full knowledge of the authority under which the agent acts, and makes no objection to the sale, will not afterwards be heard to question the authority of the agent, when in addition to this, itis shown that he not only acquiesced in the sale, but concealed his claim from others who were purchasers for value, and who had enquired of him before purchase concerning the title, without obtaining information or hearing objection thereto. (Giddings Byers, 12 Tex., 75.)</p> <p>6. Trust sale—Acquiescence.—When a trust deed authorizes the trustee to enter upon and take possession of the land and to sell the same when the contingency occurs that will authorize sale, but the deed is silent as to the place of sale, the trustee may sell at the place most beneficial to the grantor. The court house door of the county would, in such cases, be a proper place for sale.</p> <p>7. Bill of exceptions—-Assignments of error.—-Assignments of error based on the failure of a judge to file his conclusions of law and of fact cannot be considered in the absence of a bill of exceptions, taken to such failure.</p>

<p>1. Judgment—Order of Sale—Sheriff’s deed—Description.—A judgment directing land to be sold, the order of sale made thereunder, and sheriff’s deed to the land must contain such description of the land sold as will enable a person familiar with it to identify it from the description given. See opinion for description held insufficient.</p> <p>2. Tenants in common—Parol partition—Notice-—It has often been held in this state that a parol partition of land between tenants in common is valid. (Stuart v. Baker, 17 Tex., 417, and Gibbons v. Bell, 45 Tex., 423.) There is nothing in the nature of such a partition to affect a person purchasing from a party to it, with notice of its existence.</p> <p>3. Same.—A purchaser from one co-tenant would not be affected with notice of a partition from the mere fact that it was made in writing. But registration of such an instrument, actual adverse possession, or circumstances calculated to induce inquiry, as well as actual notice to the purchaser before his rights were acquired, would affect him with notice of a partition.</p> <p>4. Same—Innocent purchaser.—In the absence of notice of the partition, an innocent purchaser would be entitled to hold what from the record appeared to be the undivided interest of the co-tenant whose estate he purchased, subject to such equities as may arise among tenants in common.</p> <p>5. Same—Occupation.—The facts that a tract of land owned by two co-tenants has been divided into blocks and lots, some of which have been actually surveyed and their boundaries fixed and that one or more of them are occupied by one of the co-tenants, do not operate as notice of a parol partition.</p> <p>6. Same—Evidence.—The fact that one co-tenant assumed the right to sell the entire property in the lots on one side of the tract and does so by deeds put upon record, and that alike right is assumed and exercised by another co-tenant as to lots on the opposite side, may be looked to on the question of notice of parol partition.</p> <p>7. Same—Registration laws.—Whether or not a parol partition is within the operation of the registration laws, does not affect the rights of innocent purchasers, who, as in case of a resulting trust, are protected in equity without reference to the protection to which they are entitled under such laws.</p> <p>8. Improvements.—See opinion for facts under which parties were entitled to equities growing out of the erection of valuable improvements.</p>

<p>Appeal from Marion. Tried below before the Hon. H. C. Hynson, Special Judge.</p> <p>The opinion states the facts.</p>

<p>1. Presumption—Evidence—Official seal.—Where a certified copy of a deed is offered in evidence and the notary in his certificate declares that he had affixed his seal thereto, it is to be presumed that the seal was properly attached although its place is not indicated by the characters ordinarily used for that purpose. The same rule applies to the record itself when used instead of a certified copy thereof under agreement of counsel.</p> <p>2. Description.—When the field notes describing land are incorporated in a deed, and a mistake is manifest from the fact tha't the survey, as described, will not close, it is the duty of a court, when the deed is offered in evidence to give effect to it, if the land really intended to be conveyed can be ascertained from the deed itself, without a resort to extraneous evidence, and in that event that portion of the description manifestly false will be rejected, following Barnard v. Good, 44 Tex., 638, and other cases cited</p> <p>3. Certificate of ACKNOWLEDGMENT.^The effect of a proper acknowledgment of, or proof of a written instrument conveying or affecting title, is to admit the instrument to record. To be effective it must show on its face that it was taken by an officer authorized by law to perform the act If this be not done, the instrument cannot be legally recorded, nor can it be admitted in evidence without proof of its execution as at common law, following Holiday v Cromwell, 26 Tex , 189, and other cases cited</p> <p>4 Parol evidence—Latent ambiguity—A deed described the property conveyed as “ beginning at the southwest corner of an eighty-acre survey, on which the town of Sulphur Springs is located,’- Held, that if at the time when the deed was executed there were two towns in that vicinity known as Sulphur Springs, parol evidence would be admissible to explain the latent ambiguity in the deed and identify the particular land intended to be conveyed.</p> <p>5. Deed—Married woman —A deed executed by a married woman during coverture, and the execution of which she has not acknowledged separate and apart from her husband as required by the statute, cannot convey any right to her separate property.</p> <p>6. Evidence.—See conclusion of opinion for parol testimony of a surveyor, held admissible to show that the change of a figure in the field note of a survey described in a deed would embrace the land involved in the suit.</p>

Tried below before the Hon. J. A. B. Putnam. This was an action to revive a judgment rendered ¡November 12, 1873. The original petition, filed November 10, 1883, alleged that execution had never issued upon the judgment sued on. An amended petition, filed July 7, 1886, alleged execution issued within one year from the rendition of the judgment, but that nine years had elapsed since the last execution issued.

Tried below before the Hon. Anson Rainey. This was an action of trespass to try title.

Tried below before the Hon. Wm. Kennedy. This suit was brought by the state against D. H. Snyder, a citizen of Williamson county, Texas, in the district court of Mitchell county, April 12, 1884, under the act of April 14, 1883, which created a land-board, and the caption of “an act to investigate alleged land frauds,” which declare its object to be to investigate the operations of the general land office, to investigate the John Gibson certificates, to authorize the…

<p>Appeal from Marion. Tried below before the Hon. W. P. McLean.</p> <p>The opinion states the facts.</p>

Tried below before tlie Hon. J. G. Hazlewood. In this case the errors assigned were twenty-five in number. Those considered by the court will be sufficiently apparent from the opinion.

<p>Appeal from Navarro. Tried below before the Hon. L. D. Bradley.</p>

<p>Appeal from Bed Biver. Tried below before the Hon. D. H. Scott.</p>